Myles Berman and Peter Tilden Podcast Part 1

Peter Tilden: We have Assemblyman Jerry Hill, from the 19th Assembly District, which is up in the cities of Belmont, and San Mateo, and San Francisco, who’s proposing a Three Strikes Law for DUIs. After your third, you would lose your license and that would be it, kaputski. We also have a DUI attorney on, Myles L. Berman. Hi, Myles.

Myles Berman: Hi, Peter, how are you?

Peter: I’m good. Assemblyman?

Assemblyman Hill: Yes.

Peter: Speak to Myles [Jerry laughs] .

Myles Berman: Well, can I go first?

Peter: Absolutely.

MylesBerman: Assemblyman Hill, I have to complement you. And I’m so glad you’re in the Assembly and not a prosecutor in a courtroom. Because your arguments are so articulate and tin point that it sounds as first flush that there’s a lot of merit to it. Look, nobody wants drunk drivers on the road. And we all want safe roads. And before you come back at me, I have two reasons why I think it’s unfair.

The first reason is, is that more than 15, 20 years ago DUIs were not looked at as seriously as they have been lately, the last 15 years or so, 10, 15, 20 years. As a result, people would just go in, plead guilty, and pay a fine, and that would be the end of it. Under your proposed bill, those people who pled guilty under those circumstances could have those DUIs used against them as well.

So the second point under this argument is that people are unaware that when they do enter pleas of guilty, that in fact those DUIs can come back to haunt them. Even greater than when, at the time they entered the pleas, or they were convicted.

For example, the law used to be five years in California, as you know, and then it was changed to seven years. And then there was a movement to make it lifetime a number of years ago, just a few years ago. And the compromise was on 10.

The other issue of unfairness is, is that the evidence that’s used to convict people for DUI is mostly breath testing, probably 90 percent or greater. And breath testing, in our judgment, is not accurate and therefore there’s unfairness, inherently built in, in the nature of the way the government prosecutes DUI cases. That’s not just in California. That’s all across the county.

The second element, of course, is that field sobriety tests, which are commonly used, really don’t have any bearing on whether or not somebody is impaired by alcohol. For example, I’ve never seen anybody drive down the road with their eyes closed and their head tilted back touching their finger to nose.

Assemblyman Hill: No, you’re right and that didn’t happen. But let’s go back to the points that you’ve made, when you say it’s unfair. Well, it’s unfair to who? It may be unfair to the drunk driver who’s out there who has accumulated three, four, five, six, seven, eight DUIs over the last 10, 15, 20 years. It’s unfair maybe to him, but it’s not unfair to the 1,000 families that had people killed in 2008 by drunk drivers. Or the 28,000 families that were touched by people who were injured by drunk drivers in 2008. So I think fairness is something that we can look at. It is fair.If they pled guilty to something that occurred, you’re right. Society has changed, the way we look at drunk driving. I mean, it was acceptable 30 years ago almost and no one would take someone’s keys away from them. They would almost give them the keys and open the door for them to drive home, but we’ve changed that. Because we’ve changed that, we have to take on the new responsibility that goes with it.

Peter: Can I ask a question here for a second?

Assemblyman Hill: Sure.

Peter: Years ago, when you were talking about that Myles, what was the level of drunk driving as far as the inebriated level that they were testing for?

Myles Berman: .15.

Peter: How were they testing for it?

Myles Berman: They called them a balloon test in those days, but they were using even less reliable breath testing machines then than they have now.

Assemblyman Hill: That’s good to know, Myles, about the .15. The other part about this bill, it does give a judge the discretion. It doesn’t require that at three strikes, or three DUIs, that you automatically lose your license. If you see someone who had a DUI that was 10 years ago, 15 years ago, just made a mistake this time, and the person’s in a program, has turned their life around, whatever’s necessary. Which is really the goal.

The goal to me, and I think to most of us, is that someone would get the rehabilitation that’s necessary to solve that problem that they have that’s affecting their life. So that’s, I think, at the discretion of a judge that hopefully will take all of that into consideration before making that decision.